Tracy v. Pioneer Trust Co.

Petition for rehearing denied September 12, 1944 ON PETITION FOR REHEARING (151 P.2d 459) The appellant, Pioneer Trust Company, in its original brief on appeal assigned as error the failure of the court to give the following requested instruction:

"If you find from the evidence in this case that the services rendered by Alice Tracy were rendered under the hope and expectation that she would receive, at the death of Ann McKinney, what has been referred to herein as the home place, and if said hope was not based upon any promise or agreement upon the part of Ann McKinney that she would give her said place for the rendition of said services, then and in that case you are instructed that the said Alice Tracy, the original claimant herein, could not thereafter change her mind and charge for the services so rendered after she ascertained that her hopes had not borne fruit or been rewarded by Ann McKinney's leaving her the home place."

In our former opinion we did not refer specifically to that assignment of error, for the reason that we regarded it as without merit. The appellant now urgently requests that we specially pass upon it.

The only citation in its brief in support of its contention is "71 C.J. 44 and cases cited in note 78". We assume, in view of the reference to "cases cited in note 78" and from the general tone of the argument, that the appellant has in mind § 8 of the text (71 C.J. 44), reading in part as follows:

"When one renders services to another, in the hope or expectation of a legacy, devise, or other provision by will for his benefit, without any contract, express or implied, but relying solely upon the generosity of the person for whom such services were rendered, he can not recover for such services, because of the failure of such person to make such testamentary provision in his behalf. But it has been held that, although no right of action arises because of disappointment in not receiving a legacy for services rendered in expectation thereof, the court will allow a reasonable compensation for the services, if satisfied that it is equitable to do so under the circumstances; and, although services were performed in expectation of a beneficial provision by will, that will not prevent a recovery, if there was an express agreement to pay therefor or circumstances from which one would be implied by law."

There are eighteen cases cited in note 78 with reference to the text quoted, but our attention has not been directed to any particular one. The general principle of law enunciated in such of those cases as involve the matter, is that, "If the services were rendered merely in expectation of a legacy, without any contract, express or implied, but relying solely on the testator's generosity, no action can be maintained": Martin v.Wright's Administrators, 13 Wend. 460 (N.Y.), 28 Am. Dec. 468;Taylor v. Wood, 72 Tenn. 504; Kennard v. Hobson's Executors,6 Del. 36; Shakespeare v. Markham, 10 Hun 311; Davison v.Davison, 13 N.J. Eq. 246. See also: Case of Joseph Walker'sEstate, 3 Rawle (Pa.) 243; Jincey v. Winfield's Administrator,50 Va. 708; and Messier v. Messier, 34 R.I. 233, 82 A. 996.

As above quoted from 71 C.J. 44 and the supporting authorities, the rule is restricted to instances in which there is no contract, either express or implied, for payment for the services, and in which the one rendering the services relies solely upon the generosity of the testator. The requested instruction does not include the condition that the services must have been rendered "merely in expectation of a legacy, without any contract, express or implied", and that in rendering them Alice N. Tracy must have relied solely upon the generosity of the decedent, Ann McKinney, to provide payment therefor in her will.

We held in our previous opinion that there was no presumption that the services rendered and maintenance furnished by Mrs. Tracy were gratuitous, and further ruled that there was sufficient evidence from which the jury could have found that there was an implied contract on the part of the decedent to pay for such services and maintenance. The question of whether the services were performed voluntarily or without any expectation of Mrs. Tracy to be compensated therefor was submitted to the jury under the instruction quoted in our former opinion.

The instruction requested was too broad in scope, and the circuit court did not err in refusing to give it. The petition for rehearing is denied.